Analysis: Judge's threat may prompt court, legislative fight

Andrew Demillo, Associated Press

Updated 8:05 am, Saturday, December 2, 2017

LITTLE ROCK, Ark. (AP) — An Arkansas judge's threat to block the state from issuing any birth certificates if lawyers don't quickly fix a law that was found discriminatory could open up a new fight with a state Supreme Court that was criticized over its handling of a gay marriage case. It could also prompt a new debate in a legislature that had planned to focus on the budget, not LGBT issues, when it meets next year.

Pulaski County Circuit Judge Tim Fox last week gave attorneys for the state and three same-sex couples until Jan. 5 to come up with language to strike from the state's birth certificate law after the U.S. Supreme Court agreed with his finding that it illegally favors heterosexual couples. If the attorneys can't come up with a fix, Fox said he'll prevent the state from issuing any more birth certificates until the Legislature addresses the issue.

"The United States Supreme Court has declared portions of the Arkansas statutes addressing issuance of birth certificates unconstitutional," Fox wrote. "The defendant cannot be allowed to proceed under a statutory scheme that is unconstitutional."

If he follows through on his threat, Fox is likely sending the issue back to a court that he criticized over its handling of the birth certificate case as well as a lawsuit two years ago over Arkansas' constitutional amendment banning gay marriage. The state gay marriage case was sidetracked for months by a dispute over which justices could hear the case, and was rendered moot when the U.S. Supreme Court ruled in 2015 that same-sex couples could marry. Hours after that ruling, the state Supreme Court dismissed the case over Arkansas' ban.

Fox slammed the state high court in a footnote to his opinion last week, blaming justices for errors that he said dated back to its handling of the gay marriage case.

"These repeated errors have resulted in Arkansas citizens being denied their equal protection rights under the United States Constitution. This deprivation has occurred on a daily basis for over three years," Fox wrote in a footnote to his opinion. "As there has to date been no apology to these citizens from the judicial branch of government, this court takes this opportunity to apologize, not just to those who have been directly affected, but to all residents and citizens of the great state of Arkansas."

There's also the possibility that the issue could land before the Legislature, whose leaders have tried to avoid divisive fights over LGBT issues after a religious freedom measure was hastily rewritten in the final days of the 2015 session to address objections that it was anti-gay. A measure that would have restricted which public restrooms transgender people could use stalled in the session earlier this year after facing similar complaints.

The Legislature is set to meet in February for its abbreviated fiscal session, which will focus primarily on the state's budget. Getting the birth certificate issue on the agenda would be a challenge, since at least two-thirds of the House and Senate need to approve taking up any non-budget measure. Another possibility is Gov. Asa Hutchinson calling a special session to take up the issue, but the Republican governor said he's not looking at that possibility yet and hopes a solution can be found.

"Obviously, this needs to be resolved, and hopefully in good faith we can reach a resolution as to how to handle this challenging issue. ...We want to keep in mind the Arkansas citizens and to make sure we have a licensing process or a certificate process that works for everybody and is consistent with the Supreme Court rulings," Hutchinson told reporters last week.

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Andrew DeMillo has covered Arkansas government and politics for The Associated Press since 2005. Follow him on Twitter at www.twitter.com/ademillo

An AP News Analysis

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